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PETITIONER: MRS. HARPREET KAURHARVINDER SINGH BEDI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT21/01/1992

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) PANDIAN, S.R. (J)

CITATION:  1992 AIR  979            1992 SCR  (1) 234  1992 SCC  (2) 177        JT 1992 (1)   502  1992 SCALE  (1)142

ACT:      Maharashtra  Prevention  of  Dangerous  Activities   of Slumlords Bootleggers and Drug offenders Act, 1981:      Section  3(1)-Detention   order-Purpose  of  detention- Distinction   between   breach  of  ’law  and   order’   and disturbance  of "public order"-Facts of each case-Courts  to scrutinise  carefully-Detention ordered for more than  three months at the first instance-Order-Whether vitiated.

HEADNOTE:     With a view to check transportation of illicit  liquor, the  Police  were maintaining a watch and the  speeding  car driven  by the detenu, husband of  the  appellant/petitioner was  signalled to stop. Instead,the detenu  accelerated  the car and drove straight towards the Police party. They had to jump  on  to the foot path to save  themselves.  The  detenu hurled abuses and threatened to kill the Police officers. He kept  on  driving  the  car  recklessly,  dashed  against  a pedestrian thereby injuring him. Ultimately the car collided with  a  stationary taxi and stopped. The Police  rushed  to apprehend  the  detenu and two others in the car,  but  they jumped out of the car and escaped.      Police  seized  the  motor car  and  recovered  illicit liquor  therefrom. A police case was registered against  the detenu  and  two other unknown persons  for  offences  under Sections  307,324 read with Section 34 IPC. The detenu  made himself scarce and could not be arrested immediately.      However,  after  a  few days he  was  arrested  and  he admitted the incident including his escape. He was  produced before  the  Magistrate  and was released  on  bail  on  the condition that he should  report to the police daily.  Since the  detenu  failed  to carry out the  condition,  bail  was cancelled  and  he was taken into custody.  The  detenu then moved  the  Sessions Court against the cancellation  of  his bail, which was admitted and he was granted bail.      During  the  investigation of the  case,  Police  could record statements                                                        235 from  four  witnesses,  who deposed  only  on  condition  of anonymity as they feared retaliation from the detenu.      The  detaining  authority on being satisfied  that  the

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detenu  was likely to indulge in activities  prejudicial  to the  maintenance  of  "public  order"  passed  an  order  of detention  and the grounds of detention were served  on  the detenu. The said order was confirmed by the State Government on the report of the Advisory Board. The wife of the  detenu challenged  the detention order before the High  Court.  The High Court having dismissed the Writ Petition she has  filed the present appeal by special leave, as also a Writ Petition before  this Court, challenging the detention  order  passed against her husband.      On  behalf of the appellant/petitioner, it  was  argued that  the  activities  of the detenu had no  impact  on  the public and therefore could not be said to have disturbed the even  tempo  of the society and as such  his  detention  for acting  in  a manner prejudicial to the "public  order"  was unjustified.  It was further contended that Section 3(2)  of the  Maharashtra  Prevention  of  Dangerous  Activities   of Slumlords,   Bootleggers  and  Drug  Offenders   Act,   1981 prohibited  the  State  Government  to  make  an  order   of detention in the first instance, exceeding three months, and since  in the present case the detention order was for  more than three months, it was invalid.      Dismissing the matters, this Court,      HELD: 1.1. Crime is a revolt against the whole  society and  an attack on the civilization of the day. Order is  the basic  need  of  any organised  civilized  society  and  any attempt  to disturb that order affects the society  and  the community. The distinction between breach of ‘law and order’ and  disturbance of ’public order’ is one of degree and  the extent  of  reach  of  the activity  in  question  upon  the society.  In their essential quality, the  activities  which affect  "law  and  order" and those  which  disturb  "public order"  may not be different but in their  potentiality  and effect upon even tempo of the society and public tranquility there  is  a vast difference. In each case,  therefore,  the courts  have to see the length, magnitude and  intensity  of the questionable activities of a person to find out  whether his  activities  are prejudicial to maintenance  of  "public order" or only "law and order". [244E-G]      1.2  Respect  for  law  has to  be  maintained  in  the interest of the society and discouragement of a criminal  is one of the ways to maintain it. The                                                      236      objectionable  activities of a detenu have,  therefore, to be judged in the totality of the circumstance to find out whether those activities have any prejudicial affect on  the society as a whole or not. If the society. and not only  and individual,   suffers   on  account  of   the   questionable activities   of   a  person,  then  those   activities   are prejudicial to the maintenance of "public order" and are not merely prejudicial to the maintenance of "law and order". An order  of  detention would be valid if the activities  of  a detenu  affect "public order" but would not be so where  the same affect only the maintenance of "law and order".[245B-C]      Ram  Manohar Lohia v. State of Bihar. AIR 1966 SC  740; Arun  Ghosh v.State of West Bengal, [1970] 1 SCC  98;  Madhu Limaye v. Ved Murti, [1970]3 SCC 738; Kanu Biswas v State of West  Bengal,  [1972]  3  SCC  831;  Ashok  Kumar  v.  Delhi Administration,  [1982]  2  SCC 403;  Subhash  Bhandari   v. District Magistrate, Lucknow, [1987] 4 SCC 685, relied on.      State  of U.P v. Hari Shankar Tewari, [1987] 2SCC  490; Ahmedhussain   Shaikhhussain  v. Commissioner   of   Police, Ahmedabad & Anr, [1989]4 SCC 751; T.Devaki v. Government  of Tamil Nadu & Ors. [1990] 2SCC 456; Referred to      2.1 The explanation to Section 2(a) of the  Maharashtra

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Prevention of Dangerous Activities of Slumords,  Bootleggers and  Drug  offenders Act, 1981 brings into  effect  a  legal fiction  as  to the adverse affect on  ‘public  order’.   It provides that if any of the activities of a person  referred to  in  clauses  ( (i)-(iii) of  Section  2(a)  directly  or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or a wide-spread danger to life or public health, then public order shall be deemed  to have  been adversely affected.  Thus, it is the fall out  of the  activity  of the ‘bootlegger’ which  determine  whether ‘public  order’  has  been affected within  the  meaning  of deeming provision or not.  This legislative intent has to be kept  in view while dealing with detentions under  the  act. [246-B, C]      2.2  In the instant case, the substance of the  grounds on which detention has been ordered is that the detenu is  a bootlegger  and  in  furtherance of his  activities  and  to escape from the clutches of law, he even tried to run  over, by  his speeding vehicle, the police party, which  tried  to signal  him to a stop, exhorting all the time that he  would kill  anyone  who would come in his way.   He  continued  to drive  in a reckless speed and dashed against  a  pedestrian causing injuries to him, where                                                        237      again he had exhorted that anyone who would come in his way would meet his death.  Four witnesses- A, B, C, D,  -who agreed  to  give statements to the police on  conditions  of anonymity, clearly stated that they would not depose against the  detenu  for  fear  of retaliation  as  the  detenu  had threatened  to do away with anyone who would depose  against him.   The evidence of witnesses shows that the  detenu  was indulging    in   transporting   of   illicit   liquor   and distributing  the same in the locality and was keeping  arms with  him while transporting liquor.  The activities of  the detenu,  therefore, were not merely ‘bootlegging’  but  went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement  agencies. The  fear psychosis created by the detenu in  the  witnesses was  aimed at letting the crime go unpunished which has  the potential of the society, and not merely some individual, to suffer.   The activities of the detenu, therefore,  squarely fall within the deeming provision enacted in the explanation to   Section 2(a) of the Act.  It, therefore,  follows  that the activities of the detenu were not merely prejudicial  to the maintenance of ‘law and order’  but were prejudicial  to the maintenance of ‘public order’.  [246D-H, 247-A]      Om  Prakash  v. Commissioner of Police &  Ors.,  [1989] Supp.  (2)  SCC  576;  Rashidmiya  v.  Police  Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321; Piyush Kantilal Mehta v. Commissioner  of  Police, Ahmedabad City  and  Anr.,  [1989] Supp. (1) SCC 322, referred to.      3. The maximum period of detention is prescribed  under Section  13 of the Act which lays down that a person may  be detained in pursuance of any detention order made under  the Act,  which has been confirmed under Section 12 of the  Act. Therefore,  the  order  of detention in  the  instant  case, though it was for a period of more than three months, is not vitiated  since  the order is in conformity  with  the  said provisions.                                                    [248D, E]

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JUDGMENT:      CRIMINAL   APPELLATE/ORIGINAL  JURISDICTION:   Criminal Appeal No. 47 of 1992.      From  the Judgment and Order dated 13/14.8.1991 of  the Bombay High Court in Crl. W.P.No. 597 of 1991.                            WITH      Writ Petition (CRL.) No. 1247 of 1991.                                                        238      (Under Article 32 of the Constitution of India)      Dr.    Y.S.   Chitale   and   V.B.   Joshi   for    the appellants/Petitioners.      Altaf  Ahmed, Addl. Solicitor General, S.M. Jadhav  and A.S. Bhasme for the Respondents.      The Judgment of the Court was delivered by      Dr.  A.S.  ANAND, J. Leave is granted in  SLP(Crl)  No. 3227  of 1991.  Writ Petition No. 1247 of 1991  filed  under Article 32 of the Constitution of India is also taken up for disposal along with the aforesaid appeal, which is  directed against  the  judgment of the Division Bench of  the  Bombay High Court in Criminal Writ Petition No. 597 of 1991,  since it  is the same order of detention which has been called  in question in both the cases.      2.  Both  the appeal and the  Writ-Petition  have  been filed  by  the wife of on Harvinder Singh @ Kukku,  who  has been  detained vide order of detention, dated 26th  February 1991,  issued under the provisions of Section 3(1)n  of  the Maharashtra    Prevention   of   Dangerous   Activities   of Slumlords,   Bootleggers  and  Drug  Offenders   Act,   1981 (hereinafter  referred  to as the ‘Act’, The  appellant  had questioned  the  detention of her husband  through  Criminal Writ-Petition  No. 597 of 1991 before the Bombay High  Court on  carious grounds.  The High Court, however, did not  find any  merit  in the challenge and being of the  opinion  that there  was no infirmity in the order of detention  dismissed the Writ-Petition.  Appellant has filed an appeal by Special Leave   against  the  High  Court  judgment  and  has   also questioned  the order of detention through a petition  under Article  32 of the Constitution.  The facts leading  to  the detention  of  the  detenu as reflected in  the  grounds  of detention are as follows:      3.  The  Police personnel, attached to  Matunga  Police Station, where maintaining a watch on vehicles passing  near the  fish  market  with a view to  check  transportation  of illicit  liquor.  On 9th September 1991, a black  Fiat  Car, bearing registration no. BLD 1674, was seen coming from  the direction  of Chembur at about 0845 hrs.  The  police  party signalled  the  driver to a stop.  Instead of  stopping  the car,  the detenu, who was driving the car,  accelerated  the car and drove it straight towards the police party that they were  likely  to  be run over and to  save  themselves  they jumped  on the foot-path.  While so driving the car  towards the police party, the detenu also hurled abuses at them  and shouted  that he would kill them.  The detenu  kept  driving the car recklessly                                                        239 and then dashed against a pedestrian causing him injury  and even  at that time instead of stopping the car shouted  that whosoever would come in his way would be killed.  The detenu kept  on  driving  the car recklessly  and  dashed  the  car against  a stationery taxi damaging it. As a result  of  the collision  the  car  came to a stop.  As  soon  as  the  car stopped,  the  police party, with a view  to  apprehend  the detenu  and  the  other persons sitting in  the  car  rushed towards  them.   The detenu and two  other  persons  sitting inside  the car jumped out and escaped.  A police case  came

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to be registered with the Matunga Police Station against the detenu  and two unknown persons for offences  under  Section 307, 324 read with Section 34 of the Indian Penal Code.  The detenu  made  himself scarce and could  not  be  immediately arrested.   He  was eventually traced and arrested  on  13th September, 1990, when he made a statement admitting that  he was  engaged in transporting illicit liquor on 9.9.1990  and also  admitted his escape after hitting  the pedestrian  and the stationery taxi after driving the car towards the police party which signalled to stop him.  The detenu was  produced before  the  Metropolitan Magistrate on  14.9.1990. and  was released on bail on the condition that he should attend  the police  station  between  6.00 to 8.00  p.m.  everyday  till 24.9.1990.   However,  the detenu failed to  carry  out  the condition  which  led  to the cancellation of  his  bail  on 24.9.1990  and he was taken into custody.  The  detenu  then moved  the Sessions Court against cancellation of his  bail. His application was accepted and he was admitted to bail.      4. The motor car of the detenu,bearing registration no. BLD 1674, was seized by the police and from the dicky of the car,  12 rubber tubes and from the rear seat of the  car  13 rubber  tubes,  each containing about 40 litres  of  illicit liquor were recovered.  Samples of the seized illicit liquor were  sent to the Chemical Analyst whose report, dated  10th of January 1991, indicated that the samples contained  ethyl alcohol 34% v/v in water.      During  the  investigation  of  the  case,  the  police recorded  statements  of four witnesses who  were,  however, willing  to  make  statements  only  on  the  condition   of anonymity, fearing retaliation from the detenu in case  they deposed against him.      Keeping  in view the activities of the detenu  and  the fact  that  he  had been enlarged  on  bail,  the  detaining authority  on  being  satisfied  that  unless  an  order  of detention  was  made against the detenu, he  was  likely  to indulge  in  activities prejudicial to  the  maintenance  of ‘public order’ in future also, made an order of detention on 26th February 1991.  The grounds of detention were served on the detenu.  The order of the detention was confirmed by the State  Government  after  considering  the  report  of   the Advisory Board constituted under                                                        240 Section  12(1)  of  the Act.  The  order  of  detention  was questioned before the High Court, as already noticed through Criminal Writ Petition No. 597 of 1991, unsuccessfully.      5. Two basic arguments have been raised by Dr.  Chitale before us to question the order of detention.      The thrust of the first argument is that the activities of  the detenu could be said to be prejudicial only  to  the maintenance  of "law and order" and not prejudicial  to  the maintenance  of  "public Order".  Learned  counsel  stressed that  the  activities,  which had  been  attributed  to  the detenu,  howsoever reprehensible they may be, had no  impact on the general members of the community and therefore  could not be said to disturb the even tempo of the society and  as such  his  detention for acting in a manner  prejudicial  to ‘public order’ was unjustified.      The second argument of the learned counsel is based  on the  proviso to Section 3(2) of the Act, which according  to the learned counsel, prohibited the State Government to make an order of detention, in the first instance exceeding three months and since the order of detention in the instant  case was for a period exceeding three months, it was  categorised as bad in law and invalid.  No other contention was pressed.      6. "Public Order" or "Law and Order" are two  different

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and distinct concepts and there is abundance of authority of this  Court  drawing a clear distinction  between  the  two. With a view to determining the validity or otherwise of  the order  of  detention, it would be necessary  to  notice  the difference between the two concepts.      7. In Ram Manohar Lohia v. State of Bihar, AIR 1966  SC 740  speaking for the majority, Hidayatullah J. pointed  out the distinction in the following words:          "One  has to imagine three concentric circles.  Law          and  order  represents the  largest  circle  within          which is the next circle representing public  order          and  the  smallest circle  represents  security  of          State.  It  is  then easy to see that  an  act  may          affect  law and order but not public order just  as          an act may affect public order but not security  of          the State."      8.  In Arun Ghosh v. State of West Bengal, [1970]  1SCC 98 again Hidayatullah J. speaking for the Court, pointed out that what in a given                                                        241 situation  may  be  a matter covered by law  and  order,  on account of its impact on the society may really turn out  to be  one of ‘public order’.  It was observed:          "Take  the case of assault on girls.  A guest at  a          hotel  may  kiss or make advances to half  a  dozen          chambermaids.   He  may  annoy them  and  also  the          management  but  he does not cause  disturbance  of          public  order.  He may even have a fracas with  the          friends of one of the girls but even then it  would          be  a case of breach of law and order  only.   Take          another  case of a man who molests women in  lonely          places.  As a result of his activities girls  going          to colleges and schools are in constant danger  and          fear.  Women going for their ordinary business  are          afraid   of  being  waylaid  and  assaulted.    The          activity  of this man in its essential  quality  is          not different from the act of the other man but  in          its potentiality and in its effect upon the  public          tranquility there is a vast difference.  The act of          the  man  who molests the girls  in  lonely  places          causes  a disturbance in the even tempo  of  living          which is the first requirement of public order.  He          disturbs  the society and the community.   His  act          makes  all the women apprehensive of  their  honour          and  he  can be said to be causing  disturbance  of          public  order and not merely committing  individual          actions which may be taken note of by the  criminal          prosecution agencies." [p.100]      9. A Constitution Bench in  Madhu Limaye v. Ved  Murti, [1970]  3 SCC 738 again dealt with the question and  it  was observed:          "In  our judgment, the expression ‘in the  interest          of public order’ in the Constitution is capable  of          taking  within  itself not only  those  acts  which          disturb  the  security of the State or  act  within          order  publique as described but also certain  acts          which disturb public transquillity or are  breaches          of  the  peace.  It is not necessary  to  give  the          expression  a narrow meaning because, as  has  been          observed, the expression ‘in the interest of public          order’ is very wide."                                                     [p. 756]      10.  In Kanu Biswas v. State of West Bengal,  [1972]  3 SCC [p.756] 831, this Court opined:          "The  question whether a man has only  committed  a

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        breach  of law and order or has acted in  a  manner          likely  to  cause  a  disturbance  of  the   public          order,... is a question of degree and the extent of          the  reach  of the act upon the society  .   Public          order is what the French                                                        242          call  "ordre publique" and is something  more  than          ordinary maintenance of law and order.  The test to          be  adopted in determining whether an  act  affects          law and order or public order, as laid down in  the          above case, is: Does it lead to disturbance of  the          current of life of the community so as to amount to          a disturbance of the public order or does it affect          merely  an  individual leaving the  tranquility  of          society undisturbed?"                                                     [p. 834]      11.  In Ashok Kumar v. Delhi Administration,  [1982]  2 SCC 403 this Court re-examined the question and observed:          "The true distinction between the areas of  ‘public          order’  and ‘law and order’ lies not in the  nature          of quality of the act, but in the degree and extent          of its reach upon society.  The distinction between          the  two  concepts of ‘law and order’  and  ‘public          order’  is a fine one but this does not  mean  that          there  can  be  no overlapping.   Acts  similar  in          nature  but  committed in  different  contexts  and          circumstances might cause different reactions.   In          one case it might affect specific individuals  only          and  therefore touch the problem of law and  order,          while in another it might affect public order.  The          act  by itself therefore is not determinant of  its          own gravity.  It is the potentiality of the act  to          disturb the even tempo of the life of the community          which  makes it prejudicial to the  maintenance  of          public order."                                                [pp.  409-10]      12.   In  Subhash  Bhandari  v.  District   Magistrate, Lucknow,  [1987] 4 SCC 685, a Division Bench of  this  Court has held:          "A  solitary act of omission or commission  can  be          taken  into  consideration for  being  subjectively          satisfied,  by the detaining authority to  pass  an          order  of  detention  if  the  reach,  effect   and          potentiality  of the act is such that  it  disturbs          public tranquility by creating terror and panic  in          the society or a considerable number of the  people          in a specified locality where the act is alleged to          have  been  committed.  Thus it is the  degree  and          extent  of  the reach of the act upon  the  society          which is vital for considering the question whether          a man has committed only a breach of law and  order          or   has  acted  in  a  manner  likely   to   cause          disturbance to public order."                                                 [pp. 686-87]                                                        243      13. It is not necessary to multiply the authorities  on this point.      14. From the law laid by this Court, as  noticed above, it  follows that it is the degree and extent of the each  of the  objectionable activity upon the society which is  vital for  considering  the question whether a man  has  committed only  a breach of ‘law and order’ or has acted in  a  manner likely  to cause disturbance to ‘public order’.  It  is  the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the  maintenance

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of  ‘public  order’.   Whenever an  order  of  detention  is questioned, the courts apply these tests to find out whether the  objectionable  activities  upon  which  the  order   of detention is grounded fall under the classification of being prejudicial  to "public order" or belong to the category  of being  prejudicial  only to ‘law and order’.   An  order  of detention under the Act would be valid if the activities  of a detenu affect ‘public order’ but would not be so where the same  affect only the maintenance of ‘law and order’.  Facts of each case have, therefore, to be carefully scrutinised to test the validity of an order of detention.      15. Dr. Chitale did not dispute that if the  activities of  the  detenu have the potential of  disturbing  the  even tempo of the society or community, those activities would be prejudicial  to maintenance of ‘public order’,  he  however, relied  upon  certain judgment to  urge  that  "bootlegging" activity of the detenu in the instant case, could not affect public  tranquillity  and  did not  have  any  potential  of affecting public order to justify his detention.      Reliance  was placed on Om Prakash v.  Commissioner  of Police & Ors., [1989] Supp. 2 SCC 576; Rashidmiya v.  Police Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321 and  Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and Anr., [1989] Supp. 1 SCC 322 and it was urged that in  these cases  an  activity of "bootlegging" was not  held  to  fall within the mischief of being prejudicial to ‘public order’.      16.  Indeed, in Piyush Kantilal Mehta, Om  Prakash  and Rashidmiya   cases  (supra),  the  Court  found   that   the activities  of the detenu, a bootlegger in those cases,   as detailed in the grounds of detention, were of a general  and vague  nature and those activities did not adversely  affect the maintenance of ‘public order’ under Section 3(4) of  the Gujarat  Prevention  of Anti-Social Activities’  Act,  1985. The  Bench  in  Rashidmiya and Om  Prakash’s  cases  (supra) relied upon the judgment in Piyush Kantilal Mehta’s case and on the facts of those cases quashed the order of detention.      In   Piyush   Kantilal  Mehta’s   case   (supra),   the allegations,  in  the  ground of detention,  were  that  the detenu was a bootlegger, who was indulging in the                                                        244 sale  of foreign liquor and that he and his associates  were also using force and violence and beating innocent  citizens creating   a  sense  of  terror.   The  detenu  was   caught possessing  English liquor with foreign markings as well  as foreign liquor.  The Court found that the detenu was only  a bootlegger  and he could not be preventively detained  under the  provisions  of the Gujarat  Prevention  of  Anti-Social Activities’ Act, 1985 unless as laid down in sub-Section (4) of Section 3 of that Act, his activities as a bootlegger had the  potential  of  affecting adversely or  were  likely  to affect  adversely, the maintenance of ‘public order’ and  on the  peculiar  facts  of the case, it  was  found  that  the alleged  activities  of the detenu did  not  affect  ‘public order’ but created only a law and order problem.      Dr.  Chitale then placed reliance on State of  U.P.  v. Hari   Shankar  Tewari,  [1987]  2  SCC  490;   Ahmedhussain Shaikhhussain v. Commissioner of Police, Ahmedabad and  Anr. [1989]  4 SCC 751; T. Devaki v. Government of Tamil  Nadu  & Ors., [1990] 2 SCC 456; Ashok Kumar v. Delhi  Administration and Ors., [1982] 2 SCC 403; but none of these judgments  lay down tests different than the ones which we have culled  out from the judgments of this court referred to earlier.  Those cases were decided on their peculiar facts.  The courts were very  much  alive  to  the  conceptual  difference   between activities   prejudicial   to  law  and  order   and   those

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prejudicial to public order and since on facts it was  found that  the activities of the detenu were not  prejudicial  to ‘public order’, the orders of detention were quashed.      17. Crime is a revolt against the whole society and  an attack  on the civilization of the day.  Order is the  basic need  of any organised civilized society and any attempt  to disturb  that order affects the society and  the  community. The  distinction  between  breach of  ‘law  and  order’  and disturbance  of  ‘public  order’ is one of  degree  and  the extent  of  reach  of  the activity  in  question  upon  the society.   In their essential quality, the activities  which affects  ‘law  and order’ and those  which  disturb  ‘public order’  may not be different but in their  potentiality  and effect upon even tempo of the society and public tranquility there  is a vast difference.  In each case,  therefore,  the courts  have to see the length, magnitude and  intensity  of questionable activities of a person to find out whether  his activities are prejudicial to maintenance of ‘public order ’ or only ‘law and order’.      18.  There is no gain saying that in the present  state of law, a criminal can be punished only when the prosecution is  able  to  lead evidence and prove the  case  against  an accused  person  beyond  a  reasonable  doubt.   Where   the prosecution  is unable to lead evidence to prove  its  case, the  case fails, though that failure does not imply that  no crime had been committed.  Where the                                                        245 prosecution  case fails, because witnesses are reluctant  on account  of  fear of retaliation to come forward  to  depose against an accused, obviously, the crime would go unpunished and  the  criminal  would be encouraged.   In  the  ultimate analysis, it is the society which suffers.  Respect for  law has  to  be maintained in the interest of  the  society  and discouragement of a criminal is one of the ways to  maintain it.    The  objectionable  activities  of  a  detenu   have, therefore, to be judged in the totality of the circumstances to  find out whether those activities have  any  prejudicial affect  on the society as a whole or not.  If  the  society, and  not  only  an individual, suffers  on  account  of  the questionable  activities of a person, then those  activities are prejudicial to the maintenance of ‘public order’ and are not  merely  prejudicial  to the  maintenance  of  ‘law  and order’.      19. The Maharashtra Prevention of Dangerous  Activities of  Slumlords, Bootleggers and Drug-Offenders Act, 1981  was enacted  to provide for preventive detention  of  slumlords, bootleggers   and   drug-offenders  for   preventing   their dangerous  activities  prejudicial  to  the  maintenance  of ‘public order’.      Section  2(a)  defines the meaning  of  the  expression "acting  in  any manner prejudicial to  the  maintenance  of public order" and reads as follows:          "acting   in   any  manner   prejudicial   to   the          maintenance of public order" means          (i) in the case of a slumlord, when he is  engaged,          or  is making preparations for engaging, in any  of          his   activities  as  a  slumlord,   which   affect          adversely,  or are likely to affect adversely,  the          maintenance of public order;          (ii)  in  the  case of a  bootlegger,  when  he  is          engaged, or is making preparations for engaging, in          any of his activities as a bootlegger, which affect          adversely,  or are likely to affect adversely,  the          maintenance of public order;          (iii)  in  the case of drug-offender,  when  he  is

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        engaged or is making preparations for engaging,  in          any  of  his  activities  as  drug-offender,  which          affect   adversely,   or  are  likely   to   affect          adversely, the maintenance of public order;           Explanation:  For the purpose of this clause  (a),          public order shall be deemed to have been  affected          adversely, or shall be deemed                                                        246          likely  to be affected  adversely, inter  alia,  if          any  of  the  activities  of  any  of  the  persons          referred to in this clause, directly or indirectly,          is causing or calculated to cause any harm,  danger          or  alarm  of a feeling of  insecurity,  among  the          general public or any section thereof or a grave or          widespread danger to life or public health;"      20. The explanation to Section 2(a) (supra) brings into effect  a legal fiction as to the adverse affect on  ‘public order’.   It  provides that if any of the  activities  of  a person  referred to in clause [ (i)-(iii) ] of Section  2(a) directly or indirectly causes or is calculated to cause  any harm,  danger or alarm or a feeling of insecurity among  the general public or any Section thereof or a grave or a  wide- spread  danger to life or public health, then  public  order shall be deemed  to have been adversely affected.  Thus,  it is  the fall out of the activity of the  "bootlegger"  which determines  whether ‘public order’ has been affected  within the  meaning  of  this  deeming  provision  or  not.    This legislative intent has to be kept in view while dealing with detentions under the Act.      21. Let us now consider the facts of the instant case.      The  substance  of the grounds on which  detention  has been  ordered  is  that  the detenu  is  bootlegger  and  in furtherance  of  his  activities  and  to  escape  from  the clutches of law, he even tried to run over, by his  speeding vehicle,  the police party, which tried to signal him  to  a stop,  exhorting all the time that he would kill anyone  who would come in his way.  He continued to drive in a  reckless speed  and dashed against a pedestrian causing  injuries  to him, where again he had exhorted that anyone who would  come in  his way would meet his death.  Four  witnesses-A,B,C,D,- who agreed to give statements to the police on conditions of anonymity, clearly stated that they would not depose against the  detenu  for  fear  of retaliation  as  the  detenu  had threatened  to do away with anyone who would depose  against him.   The evidence of these witnesses show that the  detenu was   indulging  in  transporting  of  illicit  liquor   and distributing  the same in the locality and was keeping  arms with  him while transporting liquor.  The activities of  the detenue, therefore, were not merely "bootlegging" as was the position  in  Om  Prakash, Rashidmiya  and  Piyush  Kantilal Mehta’s  cases (supra) but went further to adversely  affect the  even  tempo  of the society by creating  a  feeling  of insecurity among those who were likely to depose against him as  also the law enforcement agencies.  The  fear  psychosis created by the detenu in the witnesses was aimed at  letting the  crime  go  unpunished which has the  potential  of  the society,  and  not merely some individual, to  suffer.   The activities  of the detenu, therefore, squarely  fall  within the deeming provision enacted in the explanation of  Section 2(a)  of  the Act, and it therefore, follows  as  a  logical consequence that the activities of                                                        247 the detenu were not merely prejudicial to the maintenance of ‘law  and order’ but were prejudicial to the maintenance  of "public  order".  The first argument raised by  Dr.  Chitale

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against the order of detention, therefore, fails.      22. Coming now to the second argument of Dr. Chitale to the  effect  that  proviso  to  Section  3(2)  of  the  Act, prohibited  the  State  Government  to  make  an  order   of detention in the first instance, exceeding three months, and since  the order of detention in the instant case  had  been made for a period exceeding three months, it was vitiated.      Section 3 reads as follows:          "Power  to make orders detaining  certain  persons.          (1)  The  State Government may, if  satisfied  with          respect   to  any  person  that  with  a  view   to          preventing   him   from  acting   in   any   manner          prejudicial to the maintenance of public order,  it          is necessary so to do, make an order directing that          such person is detained.          (2)   If,  having  regard  to   the   circumstances          prevailing or likely to prevail in any area  within          the local limits of the jurisdiction of a  District          Magistrate  or a Commissioner of Police, the  State          Government is satisfied that it is necessary so  to          do,  it  may,  by order in  writing,  direct,  that          during such period as may be specified in the order          such District Magistrate or Commissioner of  Police          may  also, if satisfied as provided in  sub-section          (1), exercise the powers conferred by the said sub-          section:           Provided  that the period specified in  the  order          made by the State Government under this sub-section          shall  not,  in the first  instance,  exceed  three          months  but the State Government may, if  satisfied          as  aforesaid that it is necessary so to do,  amend          such order to extend such period from time to  time          by any period not exceeding three months at any one          time.          (3) When any order is made under this section by an          officer  mentioned  in sub-section  (2),  he  shall          forthwith report that fact to the State Government,          together  with the grounds on which the  order  has          been  made  and such other particulars as,  in  his          opinion, have a bearing on the matter, and no  such          order  shall remain in force for more  than  twelve          days  after  the  making  thereof,  unless  in  the          meantime,  it  has  been  approved  by  the   State          Government."                                                        248      A  plain  reading of the Section shows that  the  State Government under Section 3(1), if satisfied, with respect to any person that with a view to preventing him from acting in a  manner prejudicial to the maintenance of "public  order", it  is  necessary  so to do , make  an  order  of  detention against the person concerned.  Sub-section (2) of Section  3 deals with the delegation of powers by the State  Government and  provides  that if the State  Government  is  satisfied, having  regard to the circumstances prevailing in  any  area within  the local limits of the jurisdiction of  a  District Magistrate  or a Commissioner of Police, it is necessary  to empower  District Magistrate or the Commissioner of  Police, as  the  case  may be to exercise the powers  of  the  State Government  to  order detention of a person as  provided  by sub-Section (1), then the State Government may, by an  order in  writing  direct  that  during  such  period  as  may  be specified  in  the  order, the District  Magistrate  or  the Commissioner of Police may also if satisfied as provided  in sub-section (1), exercise the powers of the State Government as conferred by sub-Section (1).  The proviso to sub-Section

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(2), only lays down that the period of delegation of powers, specified  in the order to be made by the  State  Government under sub-section (2), delegating to the District Magistrate or  the Commissioner of Police the powers under  sub-section (1)  shall  not in the first instance exceed  three  months. The proviso, therefore, has nothing to do with the period of detention  of a detenu.  The maximum period of detention  is prescribed under Section 13 of the Act which lays down  that a person may be detained in pursuance of any detention order made  under the Act, which has been confirmed under  Section 12 of the Act.  It is, therefore, futile to contend that the order of detention in the instant case was vitiated  because it  was for a period of more than three months.  The  second argument, therefore, also fails.      24. We are, in the facts and circumstances of the case, satisfied  that the Division Bench of the Bombay High  Court rightly dismissed the Criminal Writ Petition No. 597 of 1991 and  that  order does not call for  any  interference.   The Appeal fails and is dismissed.      25.  Writ Petition No. 1247 of 1991 also fails  and  is hereby  dismissed  since  the order of  detention  does  not suffer from any infirmity. G.N.                         Appeal/Petition dismissed.